Palghar Facebook case false, malicious, say lawyers

Dhada and Srinivasan were arrested on November 19 for a Facebook post that lamented the shutdown on the day of Shiv Sena chief Bal Thackeray’s funeral.

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MUMBAI: The Palghar police are planning to file a C-summary to close the criminal case against the two 21-year-old women, Shaheen Dhada and Rinu Srinivasan, on the grounds that it 'is neither true nor false', but criminal law experts say the police ought to be filing a B-summary report, which would treat the case as 'false and malicious'. Dhada and Srinivasan were arrested on November 19 for a Facebook post that lamented the shutdown on the day of Shiv Sena chief Bal Thackeray's funeral. After a complaint from Palghar Sena chief Bhushan Sankhe, the women were arrested and charged with trying to promote hatred or ill-will between different groups and sending a grossly offensive or menacing message through a communication device.

After a series of TOI reports, the state director general of police Sanjeev Dayal said, "The local police will follow legal procedures and will be filing the C-summary report before the court. It will then be up to the court to decide the next course of action." But his statement has been criticized by lawyers.

Former top cop-turned-lawyer Y P Singh said, "It is certainly a case for a B-summary report instead of a C-summary." Pranav Badheka, another crime lawyer, said, "The facts did not disclose any offence and the entire action was mala fide, excessive and contrary to law. Even Section 66A of the Information Technology Act was applied with no

application of mind. I feel that, based on the information available, a B-summary report may be filed, but it is for the police to apply their mind and invoke the correct closure option."

The police have, in the past, closed several high-profile cases with B-summary reports that were accompanied by calls to prosecute the police officers responsible for filing the charges. Three cases included those involving Provogue owner Salil Chaturvedi, builder Rajendra Chaturvedi and bomb blast accused who died in custody Khwaja Yunus. However, referring to the Palghar case, veteran crime lawyer Shrikant Bhat said, "It is extremely uncommon for the police to move the magistrate for granting a B-summary in a short time of just about two weeks. It is also extremely uncommon for the police to conclude investigations in two weeks." Lawyer Satish Maneshinde said, "It is one of the very rare cases, if not the first one in the state, in which the police are filing a closure report less than a month after registering the FIR."

Eventually, the closure report will only be the opinion of the police and it is up to the magistrate to accept or reject it after issuing a notice to the complainant. In one closure case, the Supreme Court, in a leading judgment, held that it is mandatory for a magistrate to issue a notice to the complainant while considering the final report. A few people and not many cops know that Section 173(ii) of the Criminal Procedure Code (CrPC) also mandates the police to inform the complainant in writing about their action. "The police must thus

inform the Sena leader that they intend to apply to the magistrate for the discharge of the two accused girls," said Bhat. It is not clear how much time the magistrate must take to give his final order. In this case, the court may act with speed, but often closure reports linger on for months, even years.

If the police do not file a chargesheet, they can close a case by filing in court an A-, B- or C-summary. An A-summary is a 'true but undetected' case, B-summary a 'maliciously false' case and C-summary a neither true nor false case. The C-summary, Singh says, "absolves the police and the complainant from criminal liability, which comes along with the B-summary". In a B-summary, cops can rely on two types of reports - a false case, or a false case with an application to prosecute the complainant under Section 211 of the CrPC. But

prosecution of the complainant for a false and malicious case is rare, admitted Singh.

"The police are trying to do a balancing act to save face in the Palghar case, otherwise they may face prosecution for registering a false case if a B-summary report is made," said Singh. "A C-summary lets off the accused, complainant and police.''

There is some kind of preliminary hearing before the magistrate accepts the police summary. "In practice, the magisterial inquiry into the classification by the police is an exception and not a rule. After my 44 years of experience, I can say that the request for an A-, B- or C-summary is not made in more than 10% cases,'' said Bhat.